m 


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M: 


REPORT  OF  THE  COMMITTEE 

*  OK   THE 

IVII^TH  ART1CI.E  OF  THE  COl^STITUTIOI^, 

RELATIVE  TO 

LATERAL  RAIL  ROADS. 

Mr.  J.  M.  PORTER— Chairman, 


READ  IN  CONVENTION,  FEBRUARY  12,  1838* 


11 


Mr.  Porter,  of  Northampton,  from  the  committee  on  the  ninth 
article,  to  whom  was  referred  the  petition  of  sundry  citizens  of 
Luzerne  county,  on  the  sixth  of  November  last,  on  the  subject  of 
the  act  of  the  oth  of  May,  1832,  entitled  '.*aju^act  regulatjng  late- 
ral rail  roads,"  made  report  as  folloT^s^S^fli:  ** 

In  the  concessions  of  William  Penn  to  the  purchasers,  execu- 
ted in  England  on  the  11th  July,  1681,  and  before  he  or  the  adven- 
turers had  sailed  for  this  country,  it  is  provided  that  '*  a  certain 
quantity  of  land  or  ground  plot  shall  be  laid  out  for  a  large  town 
or  city  in  the  most  convenient  place  upon  the  river  for  health  and 
navigation,  and  every  purchaser  and  adventurer  shall  by  lot  have 
so  much  land  therein,  as  will  answer  to  the  proportion  which  he 
had  bought  or  taken  up  upon  rent:  but  it  is  to  be  noted  that  the 
surveyors  shall  consider  what  road  or  highways  will  be  necessary 
to  the  cities,  towns,  or  through  the  lands.  Great  roads  from  city 
to  city^  not  to  contain  less  than  forty  feet  in  breadth.,  shall  be  first 
laid  out^  and  declared  to  be  for  highways,  before  the  dividend  of 
acres  shall  be  laid  out  for  the  purchasers:  and  the  like  observation 
shall  be  had  for  the  streets  in  towns  and  cities,  that  there  may  be 
convenient  roads  and  streets  preserved,  not  to  be  encroached  upon 
by  any  planter  or  builder,  that  none  may  build  irregularly  to  the 
damage  of  another.     In  this,  custom  governs." 

By  this  it  will  be  perceived,  that  it  was  intended  first  to  layout 
the  streets  of  the  cities  and  towns  and  the  great  roadsj  before  the 
lands  were  sold  to  those  who  desired  to  purchase  or  occupy.  On 
arriving  here,  it  was  found  that  there  were  insurmountable  difficul- 


^ 


ties  in  carrjiug  this  project  into  practice;  and  accordingly  a  ne^ 
arrangement  was  made,  which  has  been  followed  in  all  the  grants 
of  land  made  bj  the  proprietaries  and  the  Commonwealth  from 
that  day  to  this,  to  wit :  to  allow  six  acres  in  everj  hundred  to 
every  grantee,  without  price  or  rent,  as  an  allowance' for  roads  and 
higliways.  This  received  a  legislative  sanction  as  early  as  the 
year  1700,  and  again  in  1711,  and  by  repeated  acts  since  passed. 

This  six  acres  per  cent,  was  agreed,  on  the  one  hand,  to  be 
gr«ited,  and  on  the  other  received  in  lieu  of  what  might  be  taken 
for  public  roads  and  highways,  whether  the  requisitions  for  those 
purposes  should  exceed  or  fall  short  of  that  quantity.  ^*In  this 
plan  there  was  evidently  a  chance  that  the  purchaser  might  be 
either  a  gainer  or  loser  in  the  event,  as  it  was  then  and  would  con- 
tinue for  a  long  time  uncertain  how  much  of  each  man's  land  would 
be  found  necessary  for  such  public  roads."  ''Although  in  this 
early  arrangement,  there  might  be  a  chance  that  certain  purchasers 
might  be  obliged  to  contribute  more  thaa  six  per  cent,  to  the  roads, 
yet  it  might  possibly  have  been  foreseen  that  scarce  any  instance 
of  that  would  fK:car  without  an  equivalent  likewise  accruing  to  the 
purchaser,  from  the  vicinity  of  such  public  roads  to  their  buildings 
and  improvements." — (Per  Shippen,  C  •/.,  3  Feate*,  372;  6  Bin- 
ney,  513.) 

The  allowance  for  roads  and  highways  was  inserted  in  every 
original  grant,  and  no  matter  how  the  estates  might  be  subsequent- 
ly subdivided  or  sold,  notice  was  conveyed  to  every  such  purchaser 
in  the  grant  from  the  proprietaries  or  state  government,  that  it  was 
80  granted  and  so  received.  The  subsequent  legislation  on  the 
subject  of  roads  and  highways,  in  cases  of  county  roads,  allowed 
payment  to  be  made  to  individuals  for  any  hnprorements  which 
might  be  destroyed  in  laying  out  and  opening  county  roads;  and 
subsequently  by  the  act  of  1802,  and  the  supplementary  and  ad- 
ditional acts  on  the  sebject,  compensation  is  authorized  to  be  made 
for  the  land  itself  taken  for  public  roads.  This  is,  to  be  sure,  not 
in  accordance  with  the  provisions  of  the  grants,  but  as  it  was  a  re- 
linquishment by  the  public  to  individuals,  it  was  a  subject  perfectly 
within  the  power  of  that  public,  to  do  with  as  they  pleased.  Still, 
as  regards  state  roads  or  other  great  public  highways,  the  law 
remains  unaltered,  that  for  the  land  itself  taken,  the  person  hold- 
ing it  has  no  right  to  be  paid,  because  compensation  has  already 
been  made  to  him,  or  those  under  whom  he  claims,  by  the  allow- 
ance of  six  per  cent,  for  which  the  public  never  received  a  cent. 

The  law  is  well  settled  that  the  public  may  either  exercise  this 
power  itself  or  delegate  the  power  to  a  company  created  for  the 
purpose,  allowing  them  to  take  certain  tolls  as  a  recompense  for 
the  expenditure  in  rhe  construction  of  the  road.  The  supreme 
court  in  the  case  of  M-Clenachan  r.  Curwen,  (3  Yeates,  373;  6 
Binney,  514,)  say,  "We  cuuioty  therefore,  consider  the  legislature 


applying  a  certain  portion  of  every  man's  land  for  the  purpose  of 
laying  out  public  roads  and  highways  without  compensation,  as  any 
infringement  of  the  constitution — such  compensation  having  been 
originally  made  in  each   purchaser's  particular  grant.     But  it  is 
objected  that  even  if  the  legislature  might  do  this  themselves,  yet 
they  could  not  grant  the  right  of  doing  it,  to  individuals  or  a  cor- 
porate body  for  their  own  emolument,  so  as  to  deprive  the  inhab- 
itants or  travellers  of  the  free  use  of  the  road,  by  imposing  tolls  or 
other  restrictions  in  the  use  of  it.     To  this  it  may  be  answered, 
that  such  an  artificial  road,  being  deemed  by  the  legislature  a  mat- 
ter of  general  and  public  utility,  and  considering  that  it  was  not 
to  be  effected  but  at  a  considerable  expense,  and  that  the  expense 
could  not  be  defrayed,  nor  expected  to  be  defrayed  in  the  ordinary 
way,  by  the  inhabitants  of  the  several  townships  through  which  the 
road   was  to  run,  they  devised  this  mode  of  accommodating  the 
public  with  such  a  road  at  the  expense  of  private  individuals,  who 
from  a  prospect  of  deriving  some  small  profit  to  themselves,  might 
be  induced  to  do  it.     It  was  immaterial  to  the  public  whether  it 
was  done  by  a  general  tax,  to  be  laid  on  the  people  at  once,  or  by 
the  gradual  payment  of  certain  specified  sums  by  way  of  tolls  on 
those  who  used  the  road  onlyj  the  latter  being  considered  as  the 
most  equal  mode  of  defraying  the  charge  of  making  and  keeping 
such  road  in  repair.     For  although  every  man  has  a  right  to  the  free 
use  of  a  public  road,  yet  every  member  of  the  community  may  be 
taxed  for  making  that  road  in  any  manner  that  the  legislature  may 
think  reasonable  and  just." 

The  roads  of  the  Province  were  divided  into  three  kinds — first, 
those  called  in  the  act  of  1  TOO,  "the  king's  highways,"  or  "  public 
roads,"  which  were  laid  out  by  the  Governor  and  council:  these 
were  usually  called  the  great  Provincial  roads. 

Second.  The  roads  or  cartways  leading  to  such  great  provincial 
roads,  laid  out  by  order  of  the  justices  of  the  county  courts  after 
the  refurn  of  viewers,  that  the  same  were  necessary  for  the  con- 
venience of  the  public  :  such  parts  of  these  roads  as  run  through 
any  man's  improved  ground,  v/ere  to  be  paid  for  out  of  the  county 
stock. 

Third.  Private  roads,  likewise  laid  out  by  order  of  the  county 
court,  on  the  application  of  any  persons  for  a  road  to  be  laid  out 
from  or  to  their  plantations  or  dwelling  places,  to  or  from  ihe  high- 
way. The  improved  grounds  through  which  these  roads  run,  were 
directed  to  be  paid  for  by  those,  at  whose  request,  and  for  whose 
use  the  same  were  laid  out. 

From,  the  year  1700  to  the  present  time,  there  has  been  provision 
by  law  for  opening  private  roads,  giving  a  man  the  means  of  ingress 
and  egress  to  and  from  his  lands  and  the  public  road  or  highways 
in  other  words,  prescribing  the  mode  in  which  a  right  of  way,  which 
exists  from  necessity,  shall  be  designated  and  secured.   To  the  ex- 


'Vl  Ci^\ 


ercise  of  this  right  there  can  and  ought  to  be  no  objection,  as  it  is 
one  growing  out  of  the  necessities  of  society. 

The  question  as  to  rights  on  our  rivers  has  been  before  our  courts 
in  various  shapes.     In  the  case  of  Carson  r.  Bla/.er,  (2  Binnej, 
475,)  it  was  held,  that  the  riparian  owner  had  no  exclusive  right  in 
the   stream  of  the  Susquehanna,  but  that  anj  person   might  fish 
therein  if  he  did  not  draw  out  on  the  shore,  which  belonged  to  the 
riparian  owner.     In  the  case  of  Ueberoth  r.  the  Lehigh  Coal  and 
Navigation   company,  (7  Hazard's  Register,  292,)  Judge  Huston, 
in  his' charge  to  the  jurj  says,  "  The  State  may  improve  our  naviga- 
ble streams  itself,  or  permit  companies  or  individuals  to  improve 
them  for  the  use  of  the  public  and  themselves,  authorizing  them  to 
be  compensated  for  so  doing  by  the  tolls  to  be  received;"  thus  put- 
ting them  on  the  same  footing  as  the  supreme  court  had  previously 
placed  turnpike  roads.     Again,  he  says  in  the  same  case,  "Along 
all  the  rivers,  almost,  there  is  a  strip  of  land  between  the  bank  and 
low  water,  which  is  covered  when  the  river  is  up,  but  which,  as  it 
falls,  is  left  bare,  &c.     This  is  a  peculiar  kind  of  property.    The 
owner  of  the  land  bounding  on  such  a  stream,  has  a  right  to  use  it 
to  a  certain  extent,  nntil  the  State  chooses  to  claim  and  use  it.  or 
authorize   others  to  do  it,  for  the  purpose  of  navigation.      The 
owner  of  the  adjacent  ground  has  a  right  to  fish  opposite  to  and 
draw  out  upon  it;  perhaps  to  take  the  wood  off*  it.     But  were  he  to 
build  a  wharf  or  make  a  wingwall,  which,  as  the  river  rose,  would 
oflfer  any  obstruction  to  the  navigation,  be  could  be  indicted  and 
convicted  of  a  nuisance,  and  be  compelled  to  abate  it.     The  pio- 
perty  in  the  land  between  high  and  Ijw  water  is  a  curious  kind  of 
right.     It  is  a  qualified,  not  an  absolute  one.     It  is  better  than  that 
of  any  one  else,  but  always  subject  to  the  superior  right  of  the  State. 
For  the  swelling  on  such   land,  (for  purposes  of  navigation,)  tUe 
owner  of  the  adjacent  soil  is  entitled  to  no  damages,  because  the 
land  does  not  belong  to  him.     For  the  strip  of  land,  said   bv  the 
surveyor  to  be  two  rods  wide  and  upwards  of  eighty  rods  long,  along 
the  river,  and  which  is  alleged  to  be  flooded,  if  it  be  not  below  the 
bank,  but  above  it,  the  plaintiff  would  be  entitled  to  compensation 
in  damages :  I  understood  the  witness  say  the  lines  run  to  low  wa- 
ter mark.     You  were  on  the  ground  and  understood  what  is  meant 
by  the  term  bank;  for  what  is  below  such  bank, you  will  allow  no- 
thing ;  but  for  any  that  may  be  above,  you  will  allow  what  is  right. 
*•  It  is  a  matter  of  no  consequence  what  the  plaintiff  paid  for  his 
land.     The  true  rule  is,  what  was  the  plaintiff's  land  worth  ;  what 
would  it  have  sold  for  before  the  dam  was  erected?     What  is  it 
worth  ?     What  would  it  sell  for  after  the  dam  is  erected  and  the 
works  in  operation  ? 

*'In  settling! the  amount  of  damages,  the  law  requires,  and  so 
does  reason  too,  that  you  should  take  into  consideration  any  advan- 
tages which  the  plaintiff  may  have  derived,  or  may  derive  from  the 


^^-^  •% 


s- 


construction  of  the  works  of  the  Lehigh  Coal  and  Navigation  Com- 
pany. If  the  general  rise  of  land,  or  any  part  of  it,  is  or  can  be 
distinctly  traced  to  that  cause,  you  are  bound  to  take  that  circum- 
stance into  consideration.  If  facilities  are  afforded  him  thereby, 
which  are  of  value  to  hiuj,  they  should  be  considered.  If  advanta- 
ges are  derived  to  the  country  generally,  in  which  he  participates, 
all  these  things  are  to  be  considered.  If  he  has  received  an  ad- 
vantage on  the  one  hand  and  an  injury  on  the  other,  both  are  to  be 
taken  into  consideration.  You  cannot  allow  for  the  injury  without 
estimating  his  advantages  also."  This  principle  is  also  settled  by 
the  supreme  court  in  Thoburn  v.  the  Schuylkill  Navigation  Compa- 
ny, (7  S.  &  R.  411,)  in  which  the  court  say,  "  That  in  estimating 
the  damages,  the  jury  are  to  value  the  injury  to  the  property  at  the 
time  the  injury  was  sustained,  without  reference  to  the  person  of  the 
owner  or  of  the  state  of  his  business:  and  the  measure  of  such  da- 
mage is  the  difference  between  what  the  property  would  have  sold 
for  as  affected  by  the  injury,  and  what  it  would  have  brought  unaf- 
fected bj  such  injury." 

The  subject  of  the  rights  to  lands  bordering  on  rivers,  was  also 
before  the  supreme  court  in  the  case  of  the  Commonwealth  v.  Shaw, 
(14  S.  &  K.  12,)  and  in  Shrunk  v.  the  Schuylkill  Navigation  Com- 
pany, (14  S.  &  R.  71.) 

The  result  of  all  the  decisions  gives  the  owner  of  the  shore  the 
exclusive  right  to  the  use  and  occupancy  of  that  shore,  and  of  the 
right  of  landing  and  drawing  out  on  and  at  the  same. 

The  spirit  of  all  our  institutions,  and  the  language  of  our  consti- 
tutions, both  of  the  United  States  and  of  the  State,  forbid  the  legis- 
lature from  taking  one  man's  property  to  give  it  to  another:  and  in 
the  case  of  private  roads,  the  right  of  way,  over  the  soil  merely,  is 
granted,  not  any  right  in  the  soil  itself.  This,  as  has  been  observed, 
has  grown  out  of  the  necessities  of  society,  and  has  been  so  long 
practiced,  as  to  be  considered  part  of  the  terms  of  the  grant  of  every 
tract  of  land.  In  the  cases  of  incorporated  companies  constructing 
a  rail  road  or  canal,  these  works  when  constructed,  are  for  public 
use,  and  therefore  may,  on  the  authorities  cited,  be  considered  in 
the  same  light  as  if  the  act  had  been  done  by  the  Commonwealth 
itself.  The  public,  for  public  convenience,  may  undoubtedly  take 
private  property  :  that  is  understood  in  all  grants; — and  compensa- 
tion must  either  have  been  made  therefor  to  the  original  grantee,  or 
must  be  provided  for  to  the  holder  of  the  property. 

That  hardships  do  occur  to  individuals,  under  the  rules  adopted 
by  our  courts,  for  the  assessment  of  the  damages  sustained  by  the 
construction  of  works  of  internal  improvement,  is  no  doubt  true; 
and  yet  the  rules  adopted  for  the  admeasurement  or  assessment  of 
such  damages,  are,  undoubtedly,  the  true  general  rules  on  the  sub- 
ject. 

In  the  matter  which  has  been  submitted  to  the  committee,  the 


petitioners  complain  that  the  act  in  question  confers  upon  the  per- 
sons authorized  to  make  the  rail  road,  the  power  to  take  possession 
of  the  road  and  the  soil  within  its  limits  forever;  and  they  complain 
that  the  act  is  unconstitutional  : 

First.  Because  it  is  not  a  general  law  extending  over  the  whole 
State,  but  is  restricted  in  its  operations  to  the  counties  of  Lycom- 
ing, Luzerne,  Northumberland  and  Schuylkill. 

Second.  Thai  it  precludes  and  debars  the  oppressed  from  resort- 
ing to  the  higher  tribunals  of  justice  to  obtain  redress. 

Third.  That  it  takes  away  the  rights  and  property  of  one  citizen 
without  his  consent,  and  vests  the  same  in  another  for  his  own  pri- 
vate purposes  and  pursuits,  contrary  to  the  stipulations  in  the  grant 
of  the  land  by  the  Commonwealth,  and  in  violation  of  the  provisions 
of  the  bill  of  rights. 

They  complain,  further,  that  by  the  proceedings,  as  far  as  yet  had 
under  the  act,  it  has  been  construed  as  taking  away  not  only  the  soil 
necessary  for  the  road,  but  also  the  necessary  landings  on  the  Sus- 
quehanna. 

The  act  which  has  elicited  the  petition,  was  passed  on  the  5th  of 
May,  1832,  and  authorizes  the  owner  or  owners  of  land,  mills,  quar- 
ries, coal  mines,  lime  kilns,  or  other  real  estate  in  the  vicinity  of 
and  rail  road,  canal,  or  slack  water  navigation,  made  or  to  be  made 
by  any  company,  or  by  the  State  of  Pennsylvania,  and  not  more  than 
three  miles  distant  therefrom,  to  make  a  rail-road  thereto  over  any 
intervening  lands^  and  after  marking  the  course  thereof  through  such 
intervening  lands,  doing  no  damage  to  the  property  explored,  to 
apply  to  the  court  of  common  pleas  of  the  proper  county,  setting 
forth  the  beginning,  courses  and  distances  and  place  of  intersection 
of  the  main  rail  road,  canal  or  slack  water  navigation,  the  court  are 
thereupon  to  appoint  six  viewers  to  decide  upon  the  necessity  and 
usefulness  of  the  same  (or  public  or  private  tise,  and  to  report  what 
damages  will  be  sustained  by  the  owner  or  owners  of  the  inter- 
vening land  by  the  construction  and  use  of  such  rail  road.  This 
report,  if  unappealed  from,  is  to  be  confirmed  or  rejected  by  the 
court.  Each  party  has  the  liberty  of  appealing  therefrom  within 
twenty  days,  when  the  cause  is  to  be  put  to  issue,  and  placed  first 
on  the  trial  list  at  the  next  regular  term  of  the  court,  and  to  be  there 
tried  and  determined  by  the  court  and  jury,  and  the  verdict  so  ren- 
dered and  the  judgment  thereon  shall  he  final  and  conclusive,  with- 
out further  appeal  or  writ  of  error.  The  jurors  are  to  take  into 
consideraton  the  advantages  to  be  derived  by  the  owner  or  owners 
of  the  land  passed  by  such  rail  road. 

After  the  decision,  the  party  asking  for  the  road  may,  on  payment 
of  all  the  costs  that  have  accrued,  abandon  the  further  prosecution 
of  the  road.  No  such  road  to  exceed  in  breadth  twenty  feet,  nor 
to  pass  through  any  burying  ground,  place  of  public  worship,  nor 


any  dwelling  house  or  out  buildings,  without  the  consent  of  the 
owner  thereof.     The  mode  of  construction,  bridging,  &;c.  is  point- 
ed out,  "  and  the  right  of  property  in  the  said  rail  road,  shall  be 
vested   in   him  or  them,  his  or  their  heirs  and  assigns,  who  have 
subscribed  the  petition  for  the  said  rail  road,  and  whose  funds  have 
been  contributed  and  paid  for  the  construction  thereof,  in  such  just 
proportions,  as  each  contribution  and  payment  shall  bear  to  the  whole 
amount  expended  in  the  formation  and  completion  of  the  said  rail 
road  and  the  satisfaction  for  damages  for  lands  and  materials  appro- 
priated thereto."     The  road  to  be  jointly  and  severally  enjoyed  and 
used  by  the  proprietors  thereof;  but  the  ground  is  not  to  be  broken 
for  the  construction  of  such  rail  road  until  the  damages  assessed  be 
paid  or  tendered,  except  in  cases  of  the  parties  entitled  being  un-* 
known.     Notice  of  the  intended  application  to  the  court  is  to  be 
given  to  the  parties  interested,  and  the  right  is  granted  to  enter 
upon  the  adjoining  ground  for  materials  to  construct  the  road,  after 
a  rate  of  compensation  shall  have  been  settled  in  the  manner  directed. 
The  proprietors  of  the  rail  road  are  to  keep  an  account  of  the  ex- 
penditure, and  within  three  months  after  completion,  to  file  a  full 
statement  and  account  thereof,  on  oath,  in  the  common  pleas  of  the 
county,  to  the  end  that  the  the  Commonwealth  may  at  any  time  take 
the  road  on  paying  the  principal  money  expended  in  the  construc- 
tion of  the  road.     The  seventh  section  provides,  "That  the  said 
rail  road  shall  and  may  be  used  by  any  person  or  persons  transporting 
any  thing  thereon,  in  such  cars,  wagons  and  vehicles  as  are  adapted 
to  and  used  thereon  by  the  proprietor  or  proprietors  of  the  said  rail 
road  or  their  agents,  aud  no  others;  he  or  they  using  the  same,  pay- 
ing four  cents  per  mile  for  each  ton  weight  of  the  article  transported 
thereon;  and  on  all  single  articles  weighing  less  than  a  ton,  it  shall 
be  lawful  to  charge  and  receive  an  advance  not  exceeding  twenty 
per  cent,  on  the  rate  as  above  established.     The  act  proceeds  to 
give  further  directions  for  the  construction  of  bridges  or  causeways 
— limits  the  time  for  bringing  suits  for  penalties — imposes  penalties 
for  wilfully  injuring  or  obstructing  such  roads — limits  the  operation 
of  the  act  to  the  counties  of  Lycoming,  Luzerne,  Schuylkill  and 
Northumberland,  and  concludes  with  the  following  thirteenth  sec- 
tion; **  That  the  Legislature  reserve  the  right  to  repeal  or  alter  this 
act  either  in  whole  or  in  part,  as  may  respect  any  rail  road  constructed 
under  the  provisions  of  this  act." 

The  rule  seems  to  be  well  settled  that  it  is  an  incident  to  the 
sovreignty  of  every  government  that  it  may  take  private  property 
for  public  use,  of  the  necessity  or  expediency  of  which  the  govern- 
ment must  judge;  but  the  obligation  to  make  jusi  compensation  is 
concomitant  with  the  right. — (Vattel,  112;  Rutherford,  43;  Burlem. 
150;  Puffendorf,  829;  Grotius,  333;  Constitution  of  Penn'a,  art.  9, 
sec.  10;  5  Am'ts  Const.  U.  S.;  1  Bald.  220.)     But  the  Legislature 


8 

has  no  right  to  take  property  from  the  lawful  owner  and  appropriate 
it  to  the  private  use  of  another.(l  Bald.  222 — 3.) 

The  construction  of  a  road,  canal,  or  rail  road,  by  a  private  cor- 
poration, or  an  individual,  does  not  make  the  road,  canal,  or  rail  road 
a  private  one,  if  the  public  have  the  right  of  passage  thereon  by  pay- 
ing a  reasonable,  stipulated,  uniform  toil.  Its  exaction  does  not 
make  its  use  private.  If  the  public  can  pass  and  repass  and  enjoy 
its  benefits  by  right,  it  matters  not  whether  the  toll  is  due  to  the 
public,  or  a  private  corporation.  The  true  criterion  is,  whether 
the  objects,  uses  and  purposes  of  the  corporation  are  for  public  con- 
venience or  private  emolument,  and  whether  the  public  can  partici- 
pate in  them  by  right  or  only  by  permission. — (lb.  223.) 

There  could  be  little  doubt,  that  the  act  of  assembly  in  question, 
would  be  unconstitutional  and  void,  were  it  not  for  the  provisions  in 
the  seventh  section  authorizing  any  person  to  use  it  on  paying  a 
stipulated  toll,  and  the  provision  in  the  sixth  section  authorizing  the 
Stale  to  take  the  improvement  at  cost:  And  whether  those  provisions 
would  justify  proceedings  under  it,  where  the  rail  road  from  its  point 
of  commencement  being  on  the  private  ground  of  an  individual,  and 
in  such  a  position  that  it  could  only  be  used  by  such  individual,  is 
a  matter  which  may  at  least  admit  of  doubt.  On  this  subject  the 
co[nraittee  do  not  express  an  opinion. 

The  objection  that  this  act  is  confined  in  its  operation  to  a  few 
counties,  would  not  be  an  objection  to  it,  on  constitutional  grounds. 
Such  legislation  has  been  practiced  for  more  than  a  century:  wit- 
ness the  acts  for  preventing  swine  running  at  large,  the  mechanics' 
lien  law.  <kc.  There  may  be  good  reasons  too,  in  point  of  expediency, 
for  such  enactments  in  certain  cases,  all  of  which  are  proper  subjects 
for  the  exercise  of  Legislative  discretion. 

So,  too,  with  that  part  of  the  law  which  prohibits  taking  a  writ  of 
error  to  the  supreme  court.  If  this  be  a  grievance,  and  the  commit- 
tee think  it  is,  the  redress  is  to  be  sought  in  the  action  of  the  Legis- 
lature upon  that  part  of  the  act. 

The  act  vests  no  soil  in  the  proprietor  of  the  road;  it  vests  merely 
the  road  and  the  use  of  it  in  such  proprietor:  and  if  the  right  has 
been  abused  in  taking  landings  on  the  basin,  which  are  not  so 
granted,  the  party  has  full  redress  at  law.  So  that  on  the  whole,  the 
committee  do  not  conceive  that  it  is  necessary  for  this  body  to  take 
any  action  on  the  subject,  by  the  insertion  of  any  provision  in  the 
fundamental  law  of  the  State. 

They  therefore  offer  the  following  resolution  : 
ResolvecU  That  the  committee  be  discharged  from  the  forther  con^ 
sideration  of  the  subject. 


